Minister for Justice v Szlachcikowski

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards,Kennedy J.,Burns J.
• Judgment Date: 10 May 2024
• Neutral Citation: [2024] IECA 119
• Docket Number: Record No. 138/2023

Between/

Minister for justice

Appellant/Applicant

and

Ryszard Szlachcikowski

Respondent

[2024] IECA 119

Edwards J.

Kennedy J.

Burns J.

Record No. 138/2023

THE COURT OF APPEAL

Waiver of defence rights – Execution of sentences – European Arrest Warrant Act 2003 s. 22(7) – Appellant appealing against the judgment and order by which a request for consent to proceedings being brought against the respondent for the purpose of executing sentences of imprisonment imposed on him was refused – Whether the judge correctly concluded that the respondent did not appreciate the consequences of his behaviour

Facts: The appellant, the Minister for Justice, appealed to the Court of Appeal against the judgment and order of the High Court (Stack J) of the 24th of May 2023, by which a request, pursuant to Article 27.4 of Council Framework Decision 2002/584/JHA of the 13th of June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended and as implemented by s. 22(7) of the European Arrest Warrant Act 2003, as amended, for the consent of the High Court to proceedings being brought against the respondent, Mr Szlachcikowski, for the purpose of executing two sentences of imprisonment which were imposed on him in Poland in 2009, was refused by the court below. The appellant advanced the following grounds in support of her appeal: (1) the High Court erred in finding that where there is an unequivocal waiver of defence rights through a manifest lack of diligence as to service, there is a further conditional requirement that there must be an express indication to a respondent that a trial in absentia may proceed in the event that he knowingly absconds; (2) the High Court ought to have made an order for consent where it found a manifest lack of diligence as to service by the respondent and a waiver of his right to be present at trial, notwithstanding whether statements at paragraph 3.1b of a putative Part (d) table were present or otherwise; and (3) the High Court ought to have made an order for consent where it found that the respondent was aware of the likelihood that correspondence relating to criminal charges would be sent to the address he provided but consciously and deliberately avoided service, whether the respondent had been expressly informed that a trial in absentia might proceed in the event that he were to abscond or otherwise.

Held by Edwards J that the jurisprudence of the European Court of Human Rights, which the Court of Justice of the European Union fully respected in its parallel jurisprudence, was clear; for a waiver to be unequivocal and effective, knowing and intelligent, ordinarily the accused must be shown to have appreciated the consequences of his or her behaviour. Edwards J found that this was acknowledged in substance by Baker J in the Supreme Court in Minister for Justice and Equality v Zarnescu [2020] IESC 59. Edwards J held that the High Court judge correctly concluded on the evidence before her that she could not be so satisfied.

Edwards J held that the appeal would be dismissed.

Appeal dismissed.

APPROVED JUDGMENT

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Edwards delivered on the 10 ^th day of May 2024 .

Introduction

1 . Before this Court is an appeal brought by the Minister for Justice (i.e., “the appellant” or “the applicant”) against the judgment and consequent Order of the High Court (Stack J.) of the 24 ^th of May 2023, by which a request, pursuant to Article 27.4 of Council Framework Decision 2002/584/JHA of the 13 ^th of June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended (i.e., “the EAW Framework Decision”) and as implemented by s. 22(7) of the European Arrest Warrant Act 2003, as amended (i.e., “the Act of 2003”), for the consent of the High Court to proceedings being brought against Mr. Ryszard Szlachcikowski (i.e., “the respondent”) for the purpose of executing two sentences of imprisonment which were imposed on him in Poland in 2009, was refused by the court below.

2 . The respondent, who had previously resided in Ireland, had earlier consented to his surrender to the Republic of Poland, which was sought by the Katowice Circuit Court on foot of an EAW (i.e., “the EAW”), in respect of seventy-seven fraud offences, which surrender took place on the 27 ^th of October 2021. While remanded in custody there following his surrender in relation to those matters, a separate issuing judicial authority in the Republic of Poland, namely the Sosnowiec Circuit Court (i.e., “the issuing judicial authority”), by Decision and Request dated the 20 ^th of June 2022, requested, via the Central Authority for the European Arrest Warrant in the Irish Department of Justice, that the Irish High Court (as “executing judicial authority”) would consent to the execution of two sentences of imprisonment imposed on the respondent on separate dates in 2009, which were not covered by the EAW. It should be stated that the request conspicuously made no mention of the fact that the respondent was tried and sentenced in absentia in respect of the respective offences, which comprised file reference XI K 596/08 and file reference XI K 21/09, nor did it detail any of the procedural history of the cases.

3 . The respondent objected to the High Court giving its consent to the execution of those further sentences in Poland. His opposition was originally founded on four grounds, but by an ex tempore judgment dated the 27th of January 2023 (in respect of which the respondent has not appealed), the High Court judge dismissed in limine three of those four grounds, which left a sole ground, which was concerned with the issuing judicial authority's compliance with the requirements of Article 4a of the EAW Framework Decision, transposed in Irish law by s. 45 of the Act of 2003, to be considered.

4 . The relevant surviving ground of objection was pleaded in these terms in his Notice of Objection dated the 1 ^st of November 2022:

“ 1. The imprisonment of the respondent would be contrary to Part 3 of the EAWA and, insofar as it is applicable, the Framework Decision. In particular and without prejudice to the generality of the foregoing he submits that consent should not be given because:-

[…]

(c) His surrender would be prohibited by section 45 EAWA on the grounds that this Honourable Court does not have available to it any “Form D” or other details in relation to the trials that resulted in the sentences the subject matter of the request and/or the preceding trials that impacted on that sentence.

[…]”.

5 . The respondent was successful in opposing the application before the High Court. The respondent having been successful, the appellant lodged a Notice of Expedited Appeal to this Court in which she advanced the following grounds in support of her appeal.

“ The trial judge correctly made findings of fact that the Respondent consciously and deliberately waived his right to be present at his trial. The trial judge erred in law in refusing consent pursuant to section 22(7) of the Act of 2003, in that:

• 1. The High Court erred in finding that where there is an unequivocal waiver of defence rights through a manifest lack of diligence as to service, there is a further conditional requirement that there must be an express indication to a respondent that a trial in absentia may proceed in the event that he knowingly absconds.

• 2. The High Court ought to have made an order for consent where it found a manifest lack of diligence as to service by the Respondent and a waiver of his right to be present at trial, notwithstanding whether statements at paragraph 3.1b of a putative Part (d) table were present or otherwise.

• 3. The High Court ought to have made an order for consent where it found that the Respondent was aware of the likelihood that correspondence relating to criminal charges would be sent to the address he provided but consciously and deliberately avoided service, whether the Respondent had been expressly informed that a trial in absentia might proceed in the event that he were to abscond or otherwise”.

Background to the matter

File reference XI K 596/08

6 . On the 3 ^rd of April 2008, the respondent committed an offence contrary to Article 244 of the Polish Penal Code. The factual background to this offending was that he drove a motor vehicle contrary to the judgment and order of the Sosnowiec District Court of the 6 ^th of July 2007 by which he was prohibited from driving any motor vehicle. In respect of this offence, he was sentenced by the said District Court on the 21 ^st of January 2009 to 6 months' imprisonment.

7 . The High Court was satisfied that there was correspondence between the said offence under Article 244 of the Polish Penal Code and an offence contrary to s. 38(5) of the Road Traffic Act 1961, as amended, which namely is the Irish offence of driving whilst disqualified.

8 . The procedural history to this matter was in part described in a reply to a request dated the 6 ^th of October 2022, pursuant to Article 15(2) of the EAW Framework Decision and s. 20(1) of the Act of 2003, for further information. The information provided by the issuing judicial authority, in a reply dated the 11 ^th of October 2022, on foot of this request for further information, stated as follows:

“ In the case, the procedural steps were held at 3 dates of hearings. The accused Ryszard Szlachcikowski was notified about all three dates by sending a notification to the address he indicated in the preparatory proceedings. All three notices were upon the issuance of advice notes and were not collected. The accused did not appear at any of the dates, and the proceedings therefore proceeded in his absence. At the third hearing date, in the absence of the accused, a default judgment was passed. The judgment was sent to the address indicated by the accused, it was...